Negotiating an outcome
There are several steps involved once your common law claim has started. Your claim might be resolved and end at any step along the way.
The pre-proceedings phase
This phase is where the claim is investigated and we try to reach an outcome without going to court.
Step 1 – Liability decision
We ask our panel lawyers to investigate your claim to work out if there was a breach of duty of care. This is called a liability investigation.
Step 2 – Claim value investigation
We investigate the value of the claim (called 'quantum') by getting medical reports, employment records, and other relevant information.
Step 3 – Informal negotiations
If employer fault is identified, informal negotiations may start. Lawyers will discuss whether a claim can be resolved informally without going to court.
This stage is about trying to make the fairest offer early. We hope to get the best result for everyone and avoid the stress, cost and long wait of going to trial. Even so, this stage can take up to a year.
Step 4 – Compulsory conference
If agreement isn’t reached in step three, the next step is called a compulsory conference. This is a meeting between you and others involved (this may include your employer or other third parties).
At this meeting, everyone will talk about what happened and who should be at fault, or found liable. The amount of damages will also be discussed.
An independent mediator may oversee this as part of an alternative dispute resolution (ADR) process.
Step 5 – Final written offer
Sometimes agreement can’t be reached at compulsory conference. If this happens, both groups will make a final written offer. There are 14 days to consider the offers.
If accepted, the matter is considered settled and damages may be paid.
Going to trial
If the final written offers aren't accepted, the final stage is a trial in a court of law.
Step 6 – Preparing for trial
Before going to trial, documents need to be filed. Negotiations can continue at this stage and the matter can still be resolved before trial.
Step 7 – Trial
The final stage is trial, in a court of law. Getting to trial can take another year or more. Find out more about going to court.
Claims settled out of court
You'll need to sign an agreement, regardless of how the claim is resolved. This agreement confirms you won’t make any other claims for the injury and you'll keep information confidential.
The role of your employer
Our panel lawyers will talk to your employer throughout the negotiation phase. Your employer may attend the compulsory conference. This is because payments agreed on could affect your employer’s future premium rate.
WorkCover and our panel lawyers will make decisions in consultation with your employer.
If you, or your employer, have relevant information relating to the common law claim, it must be shared. This process is called 'disclosure'.